Submitted June 19, 2013.
MI100307DV. Yamhill County Circuit Court. Ronald W. Stone, Judge.
Peter Gartlan, Chief Defender, and Jonah Morningstar, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Schuman, Senior Judge.[*]
[271 Or.App. 76] DUNCAN, P. J.
In this criminal case, defendant appeals the trial court's judgment convicting him of two counts of assault in the fourth degree, ORS 163.160, and two counts of harassment, ORS 166.065. On appeal, defendant raises two assignments of error. In his first assignment of error, defendant asserts that the trial court erred by excluding evidence that he sought to introduce to rebut the state's evidence that he had threatened one of the state's witnesses. We reject that assignment because we conclude that the court excluded the evidence under OEC 403 and did not abuse its discretion in doing so. In his second assignment of error, defendant asserts that the court committed plain error by ordering him to pay court-appointed attorney fees. We reject that assignment because there is evidence in the record from which the trial court could find, as required by ORS 161.665, that defendant " is or may be able to pay" the fees. Accordingly, we affirm.
The state charged defendant with two counts of assault in the fourth degree and two counts of harassment. The charges arose from an altercation between defendant and his girlfriend, which was reported to the police by their neighbor, Bowers.
During the lunch break on the first day of trial, there was an incident, the nature of which the parties disputed. The prosecutor told the trial court that defendant had threatened Bowers, which upset Bowers's husband and triggered a verbal altercation between Bowers's husband, defendant, and two of defendant's friends. Defense counsel told the court that defendant had not threatened Bowers and that Bowers's husband had confronted defendant and his two friends without provocation. According to defense counsel, Bowers's husband had followed defendant and his two friends after they left the courthouse and " went berserk and really started yelling." The trial judge commented that he had seen defendant and his friends leave the courthouse and, shortly thereafter, had seen Bowers's husband " storming" up the sidewalk in their direction.
The prosecutor told the trial court that he wanted to ask Bowers about the threat that she said defendant had [271 Or.App. 77] made to her. The prosecutor's theory of admissibility was that the threat was relevant to show that defendant had " a guilty conscience." Defense counsel objected to the prosecutor's proposed questioning, asserting that defendant had not threatened Bowers and that Bowers's husband had instigated the incident.
The trial court ruled that the prosecutor could ask Bowers if she had been threatened, but could not ask about any details. In response, defense counsel told the trial court that she wanted to call defendant's two friends as witnesses to the incident. The trial court told defense counsel that it would not allow her to do so, stating:
" No. I am not interested in the facts of the interaction. All I am going to allow is has she been threatened. She can say yes or no. You can ask him [if he has] ever threatened her, and he can say no or yes, whatever the truth ...